Council manager unfairly dismissed over flawed tender process

An employment tribunal has ordered that a council manager be reinstated in his job and paid £100,618 in lost wages after his claim of unfair dismissal in the fallout from a complex procurement process was upheld.

Jim Thornhill, who had worked at Camden Borough Council in London for 37 years, was dismissed from his role as street lighting and drainage manager in September 2017 following an internal investigation into the mishandling of a process that cost the council a large amount in compensation.

The Central London Employment Tribunal heard Thornhill was accused of failing to report potential irregularities in a tender process, and of neglecting to inform his employer about interactions with one of the bidding companies, even though he had asked to be removed from the process as he dealt with the aftermath of an accident that left his son hospitalised.

The tribunal judge, Karen Welch, ruled that the investigation leading to Thornhill’s dismissal was “seriously flawed”, branding some of the evidence collected for the disciplinary hearing “meaningless”.

In 2015, Camden Council put a new contract out to tender, which included street lighting in the borough. It was Thornhill’s job to assess what was required in the contract, so contractors could produce tenders.

In September of that year, Thornhill’s son was involved in a serious road accident that saw him hospitalised for long periods of time. During the following two months, his son underwent five operations, including having his leg partly amputated. Thornhill said his mind was “all over the place” because of the emotional stress of attending hospital and physiotherapy appointments.

Thornhill requested he be removed from the tender process and the evaluation panel that would award the contract. However, he was told he could not be excused, as he was “the only person who knew anything about street lighting”.

On 1 October, Thornhill’s manager, Iona Goodchild, sent him a pricing document submitted by one of the tenderers – the council’s current provider. When he queried with another panel member whether he should be shown this document, he was assured it was fine as long as he did not share it with anyone outside the panel.

The tribunal heard Goodchild sent Thornhill another pricing document from the provider on 6 November. Both times, this information was used to alter the quantities required on the tender, to align with the council’s budget. The contract was awarded to the incumbent provider on 11 December 2015.

A competing contractor challenged this process on the grounds its rival gained an advantage. Camden sought legal advice and settled the matter out of court for a “substantial” sum.

Subsequently, the council opened an internal investigation into the matter, central to which was Thornhill having seen the pricing document. An audit was requested in November 2016.

Thornhill cooperated with the investigation, meeting with auditors multiple times, but was signed off on long term sick leave with depression and post-traumatic stress syndrome in March 2017, after which he was not requested to attend any more meetings.

The council’s audit also highlighted that Thornhill had helped an employee of the current provider access rugby tickets during the tender process.

A disciplinary hearing took place in August 2017, relating to Thornhill’s knowledge of commercial information which impacted on the tender, and his failure to inform the legal department or management about both the sharing of the pricing document or his interactions about the rugby tickets. Thornhill did not attend due to ill-health.

Following an adjournment to consider the impact of his son’s accident on the circumstances, Thornhill was dismissed with immediate effect on the grounds of gross misconduct on 4 September 2017.

However, the employment tribunal found that the investigation that led to Thornhill’s dismissal was flawed. Although the reason for the dismissal – his conduct – was “potentially fair”, it ruled “no reasonable employer would have come to the conclusion that [Thornhill] had acted dishonestly and/or had committed gross misconduct in these circumstances”.

The judge noted that during the internal audit, it was never explained to Thornhill that he himself was being investigated for dishonesty or fraud, which meant he was unable to respond fully to these allegations at the disciplinary hearing.

Much of the evidence in the audit was redacted or not provided, with minutes only existing for one of the five meetings held between the auditors and Thornhill.

The fact that Thornhill had no formal training in the handling of tenders, and had asked to be removed from the tender process due to his son’s accident, were all mitigating factors affecting whether his actions amounted to misconduct, the judge added.

“He was sent pricing by his superior, queried whether he should have received it with his line manager, and was told that as this was not to be shared with others, it was fine,” she said.

Thornhill could not be reached for comment, but told the Camden New Journal in October 2018 that the process was a “nightmare” and amounted to a “character assassination”.